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EXHIBIT 4.2
XXXXX INSTRUMENTS CORP.
BONUS AGREEMENT
THIS BONUS AGREEMENT (this "Agreement") is entered into by and between
XXXXX INSTRUMENTS CORP., a Delaware corporation ("Xxxxx"), and Xxxxx Xxxxxxxxxx
("Employee"), Managing Director of Xxxxx Instruments Verwaltungs GmbH, a limited
liability company formed under the laws of Germany and a subsidiary of Xxxxx
("GmbH"), as of the 6th day of January, 2000.
BACKGROUND
WHEREAS, the Board of Directors of Xxxxx (the "Board") has approved the
awards set forth herein; and
WHEREAS, pursuant to such Board approval, Xxxxx desires to provide to
Employee shares of common stock of Xxxxx (the "Shares") subject to the terms,
conditions and restrictions evidenced hereby; and
WHEREAS, Xxxxx has adopted, and the stockholders of Xxxxx have
approved, the Xxxxx Instruments Corp. 1997 Stock Incentive Plan (the "Plan");
and
WHEREAS, pursuant to Section 5.1 of the Plan, Xxxxx desires to provide
for a cash bonus payable to Employee (the "Cash Bonus," and, together with the
Shares, the "Award") upon the terms and conditions evidenced hereby, as required
by the Board and the Plan; and
WHEREAS, GmbH is the unlimited general partner of Xxxxx Instruments
Europe GmbH & Co. KG, a limited partnership formed under the laws of Germany and
the entity through which GmbH operates ("KG"); and
WHEREAS, the Award is granted to Employee in addition to, and not in
lieu of, any other form of compensation otherwise payable or to be paid to
Employee.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom, the parties agree as
follows:
1. CAPITALIZED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Plan.
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2. GRANT OF AWARD.
(a) SHARES. Xxxxx hereby agrees to issue to Employee free of costs and
charges a total of 13,240 shares of Xxxxx'x common stock, $0.01 par
value per share, on the following terms and conditions:
i. Issuance. The Shares shall be issued in 3 installments, 1/3
(rounded down to the nearest whole number) to be issued on the first
anniversary date hereof, 1/3 (rounded down to the nearest whole number)
to be issued on the second anniversary date hereof and the remainder to
be issued on the third anniversary date hereof.
ii. Forfeiture. The issuance of the Shares is conditioned on the
continued employment of Employee by GmbH (or any affiliate). In the
event that Employee terminates his employment with GmbH (or any
affiliate), or in the event that Employee's employment is terminated
for good cause (as determined in that certain Employment Agreement
dated as of January 6, 2000 by and between GmbH and Employee (the
"Employment Agreement")), at any time prior to the issuance of all of
the Shares in accordance with this Section, Employee shall forfeit his
right to receive any Shares not previously issued. Under all other
circumstances (e.g., GmbH does not renew Employee's employment or
Employee is terminated without good cause), Employee shall be entitled
to receive all of the Shares referenced herein.
iii. Acceleration. Notwithstanding anything to the contrary herein, in
the event Employee is terminated by GmbH (or any affiliate) without
good cause (as determined in the Employment Agreement) or GmbH does not
renew Employee's employment, Employee's right to receive all of the
Shares shall immediately vest free of restrictions, and the Shares, or
the unissued balance thereof, as the case may be, shall be issued
promptly following such termination.
(b) CASH BONUS. Xxxxx hereby agrees to grant to Employee, subject to the
terms and conditions of a performance share award agreement (in a form
customarily used by Xxxxx for employee cash bonus awards (the "Award
Agreement")) to be executed by the parties hereto, a cash bonus
opportunity with respect to KG's operations for the fiscal period
ending February 28, 2001. The benefits with respect to the Cash Bonus
will be calculated pursuant to the Plan based upon KG's achievement of
the performance objectives relating to KG's pretax income as set forth
in the Award Agreement.
3. RESTRICTIONS ON TRANSFER. The Award, and any interest therein or amount
payable in respect thereof, are generally nontransferable, except as
otherwise provided in the Plan.
4. FORFEITURE OF AWARD; EARLY TERMINATION; ADJUSTMENT. The Cash Bonus is subject
to forfeiture, early termination and adjustment pursuant to the Award
Agreement and to the Plan, as applicable.
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5. CONTINUANCE OF EMPLOYMENT. Notwithstanding any commitment of Employee to
remain in the service or employ of GmbH (or any affiliate), the Award shall
not and does not confer upon Employee any right with respect to the
continuation of his or her service or employment by GmbH (or any affiliate)
or alter or interfere in any way with the right of GmbH (or any affiliate)
at any time to terminate such service or employment or to change the
compensation of Employee or other terms of his service or employment; and
neither shall these terms alter or in any way affect the rights of GmbH (or
any affiliate) or Employee under any other written employment agreement
between them, except as expressly provided herein.
6. TIMING AND MANNER OF PAYMENT; WITHHOLDING TAX. Subject to any changes
imposed by or allowed under the provisions of the Plan, benefits with
respect to the Award shall be paid pursuant hereto, to the Award Agreement
and to the Plan, as applicable. Employee agrees to pay or provide for
payment of all applicable withholding taxes in accordance with the Plan and
applicable law.
7. CONSTRUCTION; AMENDMENT. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of Germany. This Agreement may
only be amended in writing by an instrument signed by both parties.
8. GENERAL TERMS. The Award and any payments in respect thereof are subject
to, and Xxxxx, GmbH and Employee agree to be bound by, the provisions of
the Plan and the Award Agreement that apply to the Award. Such provisions
are incorporated herein by this reference. Employee acknowledges receiving
a copy of the Plan and reading and understanding its applicable provisions.
In the event of a conflict or inconsistency between the terms and
conditions of this Agreement and of the Plan and the Award Agreement, the
terms and conditions of the Plan and the Award Agreement shall govern.
IN WITNESS WHEREOF, The parties have executed this Agreement as of the
date and year first written above.
XXXXX INSTRUMENTS CORP., EMPLOYEE,
a Delaware corporation an individual
/s/ XXXXXX X. XXXXXXX By: /s/ XXXXX XXXXXXXXXX
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By: Xxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxxxx
Title: President
XXXXX INSTRUMENTS VERWALTUNGS GMBH,
a German limited liability company
By: Xxxxx Instruments Europe Corp.,
a California corporation and its sole shareholder
/s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President and General Counsel
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